How to Effectively Manage Performance & Conduct - Part 3
PART THREE
Managing performance and conduct issues across your teams is hard (and I dare say, inevitable!)! Not surprisingly, queries about how to do this effectively and efficiently are among the most common we receive. Sometimes we can easily ignore or bury our heads in the sand about performance issues that slowly become a pattern of behaviour…until the time they feel insurmountable. But fear not! If done correctly managing performance and conduct issues can mean your team member/s feel supported, and you achieve the outcome you want! In this three-part blog series, we delve into how to manage performance well, both formally and informally. If you haven’t yet and would like to read the other parts of this series, you can access them through the links below.
As with any formal process, it’s important to ensure we are following the guidelines and requirements of the Employment Relations Act (ERA) 2000. There are certainly several requirements when managing performance or conduct issues (and also some areas where a lot of employers fall short in running formal processes). It’s easy to proceed with the best intentions and find yourself tripped up by process (and in an employment tribunal). It is frustrating and I would hazard a guess that, if we end up down this path, the ultimate intention of improvement was not achieved (and a lot of time and effort was spent in the process).
So how can we make sure to conduct formal processes the right way, avoiding unpleasant outcomes in the process? Read more below to find out.
Employee Rights in the Formal Management of Performance and Conduct Issues
In any employment relationship, employees have certain rights under the ERA 2000, and alongside the principles of natural justice. These should govern any action you take as a manager. The general principles are:
1. THE RIGHT TO KNOW
The employee has the right to know their alleged wrongdoings and why they are wrong. This means they must have been clearly advised on the issue including any known facts. The employee must be provided sufficient information to be able to respond to any allegations.
The employee also has the right to know what potential outcome or repercussions may arise from their alleged wrongdoing, i.e. a warning (or dismissal)
2. THE RIGHT TO CONSIDER
The employee has the right to take time to prepare and consider their response to the allegation. This means employees cannot be expected to respond immediately to any formal issue raised and should be allowed time to prepare their response or seek advice. Initial responses from employees may be considered but additional time should always be provided.
3. THE RIGHT TO REPRESENTATION
The employee has the right to seek advice, have a support person present or have someone act as their representative in a formal meeting. The employee should always be advised of this right when formal conversations occur. The support person or representative cannot be unreasonably refused. The only occasion a support person can be turned down may be where a conflict exists (i.e. the support person is a potential witness to an issue being discussed).
4. THE RIGHT TO RESPOND
The employee has the right to respond to any concern or allegation and present additional information, explanations, defence, or mitigating reasons. The employee may also choose not to respond, in which case the decisions on outcome may be made on known information and facts. The employee may provide a response in writing if they wish.
5. THE RIGHT TO A FAIR PROCESS ACTING IN GOOD FAITH
The employee has the right to receive fair and equitable treatment, free from bias.
In addition to these principles, it is important that any of your own company-defined procedures or policies are followed (if you have set down timelines or processes in your policies you MUST follow these). Failure to follow set processes can result in time-consuming employment tribunal claims and can be found to be procedurally unfair.
Remember: even if the outcome is deemed fair, the process can let you down! Carefully drafted letters, documents and other communications, as well as a clear format for meetings, will ensure the above are covered and employees are afforded their rights under the ERA 2000.
Disciplinary Process / Procedures
Generally speaking, a company’s disciplinary procedures will be defined by a clear and robust Performance Management and Disciplinary Policy as well as by the requirements of the ERA 2000.
The steps of a disciplinary process are as follows:
1. Inform and invite the employee to attend a disciplinary meeting.
2. Conduct the disciplinary meeting.
3. Adjourn and consider what action/s to take.
4. Provide a decision on the outcome.
There are important elements to cover in each of the above steps and failure to do so can result in a personal grievance being raised by an employee. These may need to be handled by the employment tribunal (something we all wish to avoid!).
Other Considerations
Allegations
It’s important that allegations against an employee are clear and concise. Allegations should contain:
· What happened.
· When it happened (and if appropriate, where it happened and who was involved).
· The rule/s or requirement/s that were breached.
Allegations do not need to be written in complicated legal terms, but they do need to have all the facts. The employee must have enough information to be able to respond if they wish.
Support Person / Representative
There are two different terms given to someone who attends a disciplinary meeting with an employee, a “support person” or a “representative”. Generally:
· A support person is someone who comes along to provide moral and emotional support. They are typically a friend, associate, colleague, or family member.
· A representative is someone who is usually hired by your employee to give them specific advice or act on their behalf. They may be lawyers, employee-lawyer advocates, or union representatives.
Employees can often find disciplinary meetings very stressful and can struggle to express their views so a representative can be helpful to translate the employee’s thoughts into words. They certainly should not be feared and can often be useful in assisting in a conversation and ensuring the employee feels supported and heard.
Employees are legally entitled to bring a support person or representative to a disciplinary meeting. Under the Employment Relations Act, an employee is entitled to appoint anyone they wish to be their representative. You may not unreasonably refuse a support person unless their presence creates a direct conflict of interest. Prior to the meeting, you may request the employee to provide you with the name and title of the person they wish to bring.
By being present at the meeting, a support person or representative is permitted to take notes and speak on behalf of the employee if the employee wishes them to.
Investigations
For less complex performance/conduct issues there is usually no requirement for a formal investigation process. For example, if you have all the relevant facts and information needed to present the allegations to the employee. An investigation can be required if you do not have all the information needed to proceed with a disciplinary process. Remember, you do need to be fairly certain that an event or issue has occurred to proceed with disciplinary action so if you receive a complaint or hear a rumour, an investigation may be appropriate.
Investigations are tricky processes and can be hard to get right if you haven’t conducted them before. There are many pitfalls and many war stories of companies trying to run them without guidance. The purpose of an investigation is to establish the facts, NOT to make a final decision or for on any action to be taken. The facts must still be presented to the employee to allow a response.
It is not a requirement to use an independent (external) investigator, but it is often easier and more efficient to ask an uninvolved party (internal or external) to undertake the investigation.
Investigators may need to review all evidence to provide a balanced report. Additional types of evidence can include CCTV footage, evidence of produced work, IT system reports and/or received complaints, and other relevant documents.
Suspensions
In serious matters, it may be advisable for the employee to be suspended pending an investigation. In effect, this means the employee will be removed from the workplace while the investigation is undertaken.
An employer can only suspend an employee in very limited circumstances and only if it is provided for in the employment agreement - it should not be done without careful consideration and advice.
A suspension is a drastic measure that should not be lightly undertaken. It should not be used as a disciplinary tool. The length of the suspension should reflect the time needed to conduct the investigation or the time needed to reduce risk. A suspension should always be confirmed in writing. This letter should outline the reasons for the suspension, issues, or concerns (allegations) that are pending investigation and an estimate of the investigation’s duration.
Summary Dismissal
This means that an employee is dismissed/terminated, and they are not to work out their notice or be paid (in lieu) for their notice period. There are only certain, very restricted scenarios where this could be enforced, and it should not be considered without advice.
Common Mistakes to Avoid
Some common issues arising from a disciplinary process are:
· Not providing all the necessary facts to enable the employee to respond.
· Not providing the employee time to consider their response (i.e., requiring an immediate answer)
· Not allowing the employee to respond (i.e., issuing the warning without hearing their side)
· Not allowing the opportunity to bring a support person or representative.
· Not allowing enough time to source a support person or representative.
· Failing to consider the employee’s explanations for their behaviour or mitigating circumstances
· Ignoring allegations made by the employee that the process was biased.
· Making a pre-determined decision on the outcome (i.e., statements such as ‘you will get a warning’) prior to a formal disciplinary meeting.
· Giving a written decision/outcome to the employee immediately following a formal disciplinary meeting (indicating no true consideration and a pre-decided outcome).
· Failing to follow a process set out in a policy document or employment contract.
· Taking too long to address the issue or raising matters from historical issues which were not addressed at the time.
· When the employee is not told what the possible disciplinary outcome might be at the start of the process (i.e., they are not fully informed of the potential repercussions)
· When the employee is treated differently from others who have done the same or similar things.
The earlier stages of the disciplinary process and the documents created lay the foundations for any outcomes or decisions. They can decide if the process followed was substantively and procedurally fair and followed the requirements of the Employment Relations Act (2000). It is important that any formal processes are managed carefully to ensure they are procedurally fair (and you can starve off personal grievance claims at a later stage). It’s important to remember that the purpose of any performance management, be it informal or formal, is to rectify behaviour and improve performance. So, with that in mind, you can see how important it is to balance out process and fairness (as well as manage the process with compassion and understanding).
Where there is ever any doubt in a performance/conduct matter, seeking advice and support will ensure robust and legally compliant processes that can support high-performing teams and protect your business.
If you need support or wish to discuss how you can manage your team’s performance and conduct give us a call, we are always more than happy to chat!